Defendant moves to vacate his judgment of conviction pursuant to C.P.L. § 440.10(1)(h) on the grounds that he was deprived of his constitutional right to the effective assistance of counsel because his lawyer failed to negotiate a plea to a conviction that would have mitigated the consequences of mandatory deportation and permanent inadmissibility and would have allowed him to remain eligible for cancellation of removal relief (hereafter referred to as an "immigration-favorable" plea). Aff. in Support of Def. Brief at 2-3 citing U.S. Const., Amends. VI, XIV and NY Const., Art. 1, § 6. Here, defendant entered a plea of guilty on March 7, 2000 to criminal sale of a controlled substance in the fifth degree, a class D felony under a superior court information and was sentenced on April 18, 2000 to a split sentence of six months in the START [*2]program or sixty days incarceration and five years' probation. Aff. in Support of Def. Brief at 7-8. This plea, to what was then an "aggravated felony," has now rendered the defendant both mandatorily deportable and permanently inadmissible to the United States. Aff. in Support of Def. Brief at 2; 8 U.S.C. § 1182(a) (2)(C)(I);8 U.S.C. § 1227 (a)(2)(A) (iii). Defendant contends that there is nothing in the record to indicate that his prior counsel attempted to negotiate a plea with less adverse immigration consequences and that such a plea, to either criminal possession of a controlled substance in the seventh degree or criminal possession of a controlled substance in the fifth degree, was feasible given the entirety of the circumstances. Defendant further asserts that he was not advised by his attorney of the immigration consequences of his plea, thus giving weight to his claim that an immigration-favorable plea was never negotiated or discussed. Defendant's present counsel asserts that prior counsel is currently uncooperative.

Criminal Procedure Law § 440.10 provides that at any time after the entry of a judgment, the court in which it was entered may, upon motion of the defendant, vacate such judgment on the grounds that, inter alia, "[t]he judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States." CPL § 440.10[1][h]. The court may deny the motion without a hearing if the moving papers fail to allege a ground constituting a legal basis for the motion or fail to allege sufficient facts to support the legal ground asserted. CPL § 440.30(4)(a); CPL § 440.30(4)(b); People v. Carceras, 34 NY2d 254, 255-256, 313 N.E.2d 728, 357 N.Y.S.2d 409 (1974).

While the court is not insensitive to defendant's present immigration circumstances, the motion by defendant pursuant to C.P.L. § 440.10(1)(h) is denied without a hearing because under both federal and state law counsel's alleged failure to negotiate an immigration-favorable plea cannot form the basis of an ineffective assistance of counsel claim for those convictions that were final before the United States Supreme Court's decision in Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010).

I. FACTUAL AND PROCEDURAL BACKGROUND

Defendant was born in the Dominican Republic and entered the United States to join his mother and sisters in1984 when he was nine years old as a lawful permanent resident. Aff. in Support of Def. Brief at 3. In the course of his young adult years, defendant held various jobs from courier to salesman and technician. Id. at 4. Defendant's interactions with the criminal justice system began in 1999 after he began to abuse drugs which resulted in his first conviction for criminal possession of a controlled substance in the seventh degree and a four month jail sentence. Id. at 4. The March 2000 conviction, which is the subject of this motion, followed.

According to the People, on February 13, 2000, defendant sold two vials of crack to an undercover police officer in exchange for $10 in pre-recorded buy money, which defendant had in his possession at the time of his arrest. Aff. in Opposition at 2. Defendant was subsequently charged by felony complaint with criminal possession of a controlled substance in the third degree and criminal sale of a controlled substance in the third degree, both B felonies, as well as criminal possession of a controlled substance in the seventh degree, an A misdemeanor. Id. On March 7, 2000, defendant waived indictment and pleaded guilty to a superior court information [*3]to the D felony, criminal sale of a controlled substance in the fifth degree and was sentenced on April 18, 2000 to a split sentence of six months in the START program or sixty days incarceration and five years probation. Aff. in Opposition at 2.

In the years immediately subsequent to that arrest and conviction, defendant married and divorced an allegedly abusive woman and in 2002 voluntarily entered drug treatment, remaining sober for the next nine years. Aff. in Support at 5. In 2006, defendant began a relationship with his now-fiancee with whom he is raising his biological daughter and her son. Id. at 6. Defendant's immediate and extended family all live in the New York City area and defendant provides financial and emotional support for them. Id. at 12. Defendant has no family in the Dominican Republic and, having claimed to witness a murder there in 1991, fears for his life should he be removed from the United States. Id. at 14.

In 2012, defendant relapsed after being laid off from his delivery job leading to his June 25, 2013 conviction to criminal possession of a controlled substance in the fourth degree, a C felony, which defendant claims will be dismissed if he completes a one-year drug rehabilitation program. Id. at 16. In July of 2013, the United States Department of Homeland Security initiated removal proceedings against the defendant on the grounds that his 2000 conviction was an aggravated felony and a deportable offense. Id. at 10. Counsel has informed this court that a final deportation order was issued last month.

II.C.P.L. § 440.10 MOTION

Defendant argues that his prior counsel's failure to negotiate an "immigration-favorable" plea amounted to ineffective assistance of counsel under both federal and state law. He argues that there is a reasonable probability that had the attorney attempted to negotiate a plea to a misdemeanor, he would have been successful on account of the fact that the prosecution had offered defendant a non-incarceratory sentence, which according to defendant indicated the People's willingness to accept a punishment more applicable to a misdemeanor than a felony as well as an interest in helping defendant gain sobriety rather than serve a prison sentence. Memo of Law in Supp. at 9. Defendant's deportation to a country he does not know and the permanent separation from his teenage children and ailing mother are just some of the grave consequences he now faces on account of his counsel's alleged ineffectiveness.

The People filed a response in opposition to the motion which argues that pursuant to C.P.L. § 440.30(4)(b) defendant's motion should be denied because there are insufficient facts to form the basis for the assertion that defendant's counsel did not take into account his immigration status when negotiating a plea or, in fact, failed to negotiate an alternative plea with less severe immigration consequences. People's Memo of Law at 6. The People further assert that defendant had no constitutional right to a plea bargain much less to an "immigration-favorable" plea. Id. at p. 7. The People assert that defendant's counsel was, in fact, effective in negotiating a plea from a B felony (with a maximum term of imprisonment of 25 years) to a D felony and a non-incarceratory sentence. People v. Pearson, 179 AD.2d 786 (2d Dept 1992)(effective representation can be inferred from a highly favorable plea agreement negotiated by counsel). Finally, the People argue that defendant is not entitled to vacatur of his judgment of conviction because defendant's conviction was final before the holding in Padilla and under the United States Supreme Court's ruling in Chaidez v. US, the Padilla rule is not retroactive. Id. at 9. In [*4]essence, the People argue that pursuant to Chaidez and a recent Second Department case, People v. Clarke, 2014 NY App. Div. LEXIS 2389 (2nd Dept. 2014) if his counsel's failure to advise him of his immigration consequences cannot form the basis for an ineffective assistance of counsel claim, then the failure to negotiate a specific plea that might avoid immigration consequences also cannot form a basis for vacatur of the conviction under the same grounds. Id. at 10.

Defendant filed a reply clarifying that defendant's position is unrelated to Padilla's holding, but rather that independently, under prevailing norms at that time, defense counsel had to take immigration into account once the People initiated plea negotiations. Reply Memo of Law at 2. Defendant distinguishes the Second Department's recent decision in Clarke by suggesting that the court did not specifically consider, nor did the parties brief, a claim of ineffective assistance of counsel based on a failure to negotiate an "immigration-favorable" plea and thus, the language denying a claim for ineffective assistance of counsel on that basis is purely dicta.

III.DISCUSSION

The United States Constitution guarantees a criminal defendant the right to counsel and the right to receive effective assistance of counsel. U.S. Const., Amend. VI; NY Const., Art. I, § 6. To prevail on a claim of ineffective assistance of counsel under the federal standard, defendant must satisfy the two-prong test articulated in Strickland v. Washington, 466 U.S. 668-694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). First, defendant must demonstrate that counsel's representation "fell below an objective standard of reasonableness." This first prong is necessarily linked to the practice and expectations of the legal community: "The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Id. at 688. If proven, defendant must then show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. Claims of ineffective assistance of counsel in the plea bargain context are also governed by the two-part Strickland test. Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985).

In order to apply the Strickland test to defendant's present claims, this court must first consider several United States Supreme Court decisions that have announced new rules regarding advice of counsel in the immigration context, Padilla v. Kentucky, 599 U.S. 356, 130 S.Ct. 1473, 176 L. Ed. 2d 284 (2010); Chaidez v. United States, 133 S. Ct. 1103, 185 L. Ed 2d 149 (2013), and the responsibilities of counsel during the plea bargain process, Missouri v. Frye, 132 S.Ct. 1399, 182 L. Ed. 2d 379 (2012); Lafler v. Cooper, 132 S.Ct. 1376, 182 L. Ed. 2d 398 (2012).

A. The Federal Standard

(1)Objective Standard of Reasonableness

In Padilla v. Kentucky, the United States Supreme Court announced a new rule that requires counsel for a criminal defendant to provide advice about the risk of deportation arising from a guilty plea. Padilla, 599 U.S. 356, 372 130 S.Ct. 1473, 176 L. Ed. 2d 284 (2010). The Court specifically held that counsel's failure to advise a noncitizen of the United States before he pleaded guilty of the adverse immigration consequences of his plea is deficient assistance under the Sixth Amendment. Id. at 369. The Court traced the history of immigration law in the United States noting its progression from a system of discretionary deportation to the most recent changes which make removal virtually automatic for most felony offenses. Id. at 359-362. As a [*5]result, the Court acknowledged that it was now difficult to "divorce the penalty from the conviction in the deportation context." Id. at 365. Since the Supreme Court concluded that it was "uniquely difficult" to classify deportation as either a direct or collateral consequence of the criminal process, counsel's advice regarding deportation prior to a plea agreement could not be "categorically removed from the ambit of the Sixth Amendment right to counsel." Id. at 365.

Thereafter, in Chaidez v. United States, the Supreme Court held that the Padilla rule does not apply retroactively to persons whose convictions became final before March 31, 2010, the date Padilla was decided. Chaidez v. United States, 133 S.Ct. 1103, 185 L. Ed. 2d 149 (2013). In Chaidez, the Court emphasized that Padilla was announcing a new rule. Id. at 1109. Prior to Padilla, "advice about matters like deportation, which were not enmeshed in the criminal proceeding" did not fall within the Sixth Amendment scope. Id. Specifically, the Supreme Court noted that before reaching the Strickland test the Court was first required to consider a threshold question: "Was advice about deportation categorically removed from the scope of the Sixth Amendment right to counsel because it involved only a collateral consequence of a conviction, rather than a component of the criminal sentence?" Id at 1108. By responding "no," the Supreme Court announced a new rule and for the first time brought considerations of deportation consequences under the ambit of the Sixth Amendment right to counsel. Id.

Given that prior to Padilla, defense counsel was not legally required to advise a defendant of the immigration consequences of his plea, it follows logically that counsel could not have been required to negotiate and obtain a "immigration-favorable" plea. As both Padilla and Chaidez make clear, prior to the ruling in Padilla, deportation and its consequences were considered collateral to the criminal process and such claims fell outside the ambit of the Sixth Amendment. Defendant's citation to general ABA principals governing plea bargaining does not overcome the presumption that follows logically from Padilla and Chaidez that before deportation became a mandatory consequence of most felony pleas it was not the prevailing professional norms for defense counsel to take deportation into consideration when negotiating pleas.

Finally, the court notes that even under the present state of the law, the Padilla court did not place upon defense counsel an affirmative obligation to negotiate an "immigration-favorable" plea. See People v. Vatic, 39 Misc 3d 1236(A) (Sup. Ct. Bronx 2013); People v. Latalski, 35 Misc 3d 1222(A) (Crim. Ct. Rich. Ct. 2012). The Padilla court only suggested that an informed attorney "may be able to plea bargain creatively" with the prosecutor in order to craft a conviction and sentence that avoided the likelihood of deportation. Padilla v. Kentucky, 559 U.S. at 373 (emphasis added).

The court, having found that defendant has failed to meet his burden under the first prong, will nevertheless address the second prong on its merits.

(2) Reasonable Probability of Prejudice

In Missouri v. Frye, 132 S.Ct. 1399, 182 L. Ed. 2d 379 (2012), and the companion case, Lafler v. Cooper, 132 S.Ct. 1376, 182 L. Ed. 2d 398, 2012 U.S. LEXIS 2322 (2012), the Supreme Court set forth a new standard to determine prejudice in context of Strickland as it applies to plea offers and plea negotiations. In Frye, defense counsel allowed a plea offer to expire without communicating the offer to the defendant resulting in the defendant accepting a later offer that was less favorable. Frye, at 1404. In Lafler, defendant rejected an early plea [*6]offer based on defense counsel's inaccurate advice concerning the prosecutor's ability to prove intent and was later convicted at trial. Lafler, at 1383. The Supreme Court held that in order to establish prejudice under Strickland in the Frye/Lafler context defendants

must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel. Defendant must also demonstrate a reasonable probability the plea would have been entered without the prosecution cancelling it or the trial court refusing to accept it. . . .

Defendant analogizes his present situation to Frye in that he claims that counsel's error (failing to negotiate an immigration-favorable plea) resulted in "a missed opportunity for a more favorable plea bargain." Memo of Law in Supp. at 8. However, defendant's allegations are purely speculative and based upon assumptions that are not adequately supported by sufficient facts to meet the Frye standard.

As a threshold issue, before even applying Frye, defendant's suggestion that counsel should have known that he was not a U.S. citizen is based only upon his rap sheet which lists both New York and the Dominican Republic as his place of birth. Aff. In Supp. at 9. The court takes notice that defendant's rap sheet also lists two different dates of birth and gives several aliases. The rap sheet is insufficient to establish that defendant's counsel knew or had reason to know that defendant was a noncitizen. Notably, defendant does not assert that he ever told counsel that he was a noncitizen but says only that the issue of his citizenship was never raised by his attorney. Defendant's further suggestion that the omission of any reference to citizenship in the transcript of the plea allocution establishes that deportation consequences were not considered is also insufficient and purely speculative. See People v. Carty, 96 AD3d 1093; 947 N.Y.S. 2d 617; 2012 NY App. Div. LEXIS 4371 (3rd Dept 2012) (in affirming denial of 440.10 the court found that plea counsel had no reason to question defendant's citizenship and that defendant had reason and opportunity to raise the issue if it was a decisive factor in his plea decision).

As to the Frye test, as the People suggest, defendant's counsel was successful in negotiating a plea from a B felony with a maximum term of imprisonment of 25 years to a D felony and a non-incarceratory sentence of five years probation including the START program. People v. Pearson, 179 AD.2d 786 (2d Dept 1992)(effective representation can be inferred from a highly favorable plea agreement negotiated by counsel). It is purely speculative for defendant to suggest that the advantageousness of that offer proves that the People were willing to offer any alternative plea. Moreover, it is equally speculative that the trial court would have accepted such a plea. People v. Castillo, 35 Misc 3d 1220(A)(2012)(holding that it was merely speculative under Frye/Lafler that the People and court would have accepted a sentence of one day less than the one year that defendant served in order to avoid harsh immigration consequences).

Lastly, the court notes again, as in Padilla, the Supreme Court in Frye/Lafler did not go so far as to require defense counsel to initiate plea negotiations or even to propose any specific plea agreement. The present state of the law remains that a defendant has no right to a plea offer. Waterford v. Burley, 429 U.S. 545,561 (1977). The Frye court noted that "[t]he alternative courses and tactics in negotiation are so individual that it may be neither prudent nor practicable [*7]to try to elaborate or define detailed standards for the proper discharge of defense counsel's participation" in the plea process. Frye, at 1408. While arguably defendant is correct in asserting that when Padilla is taken together with Frye and Lafler, today's prevailing norms and Sixth Amendment jurisprudence would suggest that competent counsel should take into account a defendant's immigration status when entering into plea negotiations, there are simply no cases that support the proposition that attorneys were required to do so prior to Padilla, Frye, and Lafler. See Hew, Maurice, "Cr-immigration: Constitutionalization of Plea Bargaining After Frye and Lafler," 2012 Emerging Issues 6298 (after Padilla, Frye and Lafler, immigration and criminal law are "completely inextricably intertwined and enmeshed" now requiring counsel to bring immigration into the plea-bargaining process); People v. Castillo, 35 Misc 3d 1220(A)(2012) (noting counsel's creative effort to persuade the court, aided by the decisions in Frye and Lafler, to apply and extend Padilla in a novel way to require counsel to negotiate immigration-favorable pleas).

Defendant's brief assumes that the prejudice standard recently articulated in Frye applies. However, arguably neither Frye nor Lafler apply because, here, the People did not offer the "immigration-favorable" plea that was either rejected without knowledge or on account of counsel's bad advice. Moreover the Frye court held that in cases not involving "uncommunicated, lapsed pleas," the standard originally articulated in Hill v. Lockhart 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985) still applies.

In Hill v. Lockhart, the Supreme Court held that Strickland's two-part test governs ineffective assistance claims in the plea bargain context. In Hill, a defendant who had entered a guilty plea alleged that his counsel gave him inaccurate advice about the amount of time he would serve before he became eligible for parole. Hill, at 59. The defendant in Hill did not allege that if adequate advice had been given that he would have rejected the plea. The court held that defendant failed to establish prejudice because he did not show that "but for counsel's errors, he would not have pleaded guilty but would have insisted on going to trial" Id. at 59, or, as restated in Padilla, "convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla, at 371.

Arguably, defendant's position is equally analogous to the facts in Hill because in essence defendant claims that he took a plea he should not have taken on account of his attorney's failings which were a combination of not advising him of the immigration consequences and not negotiating a plea that took those immigration consequences into consideration. Further, defendant clearly states that had counsel been unable to negotiate a more immigration-favorable plea, he would have gone to trial.

Here, the only evidence, that but for counsel's alleged error defendant would not have pleaded guilty and would have insisted on going to trial, is defendant's own affidavit which alone is insufficient to support his claim. Def. Aff. at ¶ 22; Changar v. United States, 2013 U.S. Dist. LEXIS 79179 (self-serving and conclusory statements that defendant would not have agreed to plea if he knew it would affect his immigration status are insufficient to show prejudice). As discussed above, defendant's plea involved a non-jail sentence with drug treatment. Defendant would have been subject to the same immigration consequences if convicted after trial but would have then faced a greater period of incarceration. Further, the People's case, a buy and bust with pre-recorded buy money, was arguably very strong which belies defendant's claim that he would [*8]have gone to trial. Matos v. United States, 907 F. Supp. 2d 378,382 (S.D.NY 2012)(overwhelming evidence of guilt forecloses any reasonable probability that defendant would have proceeded to trial); Cuevas v. United States, 2012 U.S. Dist. LEXIS 115368 *28-29 (S.D.NY 2012) (defendant must provide some basis for concluding that chance of acquittal or conviction of lesser charges was sufficiently high).

Lastly, in Kovacs v. United States of America, 744 F.3d 44, 2014 U.S. App. LEXIS 3899 (2nd Cir. 2014), counsel gave defendant inaccurate immigration advice resulting in a plea that rendered defendant mandatorily deportable after the defendant repeatedly expressed to his attorney his concern about his risk of deportation. The Kovacs court applied the standards articulated in both Frye and Hill, but modified these standards in the context of deportation, thus holding that a defendant needs to demonstrate that "but for counsel's unprofessional errors, there was a reasonable probability that the petitioner could have negotiated a plea that did not impact immigration status or that he would have litigated an available defense." Kovacs, at *13-14. Calling the Strickland standard one that "focuses on the outcome of the proceeding rather than a defendant's priorities or desires," the Kovacs court held that in order to prevail a defendant must demonstrate a reasonable probability that the prosecution would have accepted, and the court would have approved a deal that had no adverse effect on the petitioner's immigration status. Id. at 15 (emphasis added).

Here, as discussed above, it is uncertain as to what defense was available to a defendant indicted for a buy and bust case and found in possession of pre-recorded buy money. Supra, at 12-13. Further, defendant has never asserted that the pleas his attorney failed to negotiate were to non-deportable offense, or would have had no adverse effect on his immigration status, or would have been immigration-safe, only that the pleas that potentially existed would have allowed him to remain eligible for cancellation of removal. See People v. Rosales, 2011 NY Misc. LEXIS 3670 (2011) (defendant's claim, that counsel failed to advocate for a non-deportable offense, fails where no such plea was available or offered by the prosecution and the defendant was charged with Penal Law Art. 220 offenses).

(B)New York State Standard

Under Article I, §6 of the New York State Constitution, meaningful representation is judged by "the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation." People v. Henry, 95 NY2d 563, 565, 721 N.Y.S.2d 577 (2000) quoting People v. Baldi, 54 NY2d 137, 147, 444 N.Y.S.2d 893 (1981). To prevail, the defendant must prove that counsel's acts or omissions were so egregious and prejudicial that it deprived him of a fair trial. People v. Benevento, 91 NY2d 708, 713, 697 N.E.2d 584, 674 N.Y.S.2d 629 (1998); see also People v Flores, 84 NY2d 184, 188-189, 639 N.E.2d 19, 615 N.Y.S.2d 662 (1994).

While New York law does not require a defendant to fully satisfy the prejudice test, both federal and New York law require a defendant to establish that counsel's performance falls below an objective standard of reasonableness. People v. Caban, 5 NY3d 143, 152, 833 N.E.2d 213, 800 N.Y.S.2d 70 (2005); People v. Stultz, 2 NY3d 277, 284, 810 N.E.2d 883, 778 N.Y.S.2d 431 (2004); Rosario v. Ercole, 601 F3d 118, 124 (2d Cir 2010). "New York simply examines prejudice more generally in the context of whether defendant received meaningful [*9]representation." People v. Garcia, 42 Misc 3d 1205(A), **25; People v. Benevento, 91 NY2d at 713.

The Second Department has repeatedly held that under the New York State Constitution, the Padilla rule requiring counsel to advise clients of the potential immigration consequences of their pleas is not retroactive to cases where the convictions became final prior to March 31, 2010, the date Padilla was decided. People v. Andrews, 108 AD3d 727 (2nd Dept. 2013); People v. Arif, 2014 NY App. Div. LEXIS 2103 (2nd Dept 2014); People v. Lambert, 2014 NY App. Div. LEXIS 2046 (2nd Dept 2014); People v. Sagastumeal, 2014 NY App. Div LEXIS 1439 (2nd Dept 2014). Thus, as argued above, "[c]oncomitantly, [a defendant's] attorney [could not be] ineffective for allegedly failing to bargain for a plea that would result in less severe immigration consequences or proceed to trial." People v. Ramirez, 35 Misc 3d 1208(A) (Sup. Ct. Bronx 2012).

Most recently, in People v. Clarke, 2014 NY App. Div. LEXIS 2389 (2nd Dept. 2014) the Second Department decided a case with similar facts to the instant action. In Clarke, the defendant pleaded guilty to assault in the second degree in 2000 with the advice of his first attorney and was sentenced in accordance with the plea agreement to five years probation. In 2003, while still on probation, the defendant in Clarke was arrested and charged with criminal possession of a weapon in the third degree, among other charges. He was tried and convicted of all charges and subsequently entered a plea of guilty to violating the terms of probation with a second attorney, and his conditional sentence was revoked. The United States Department of Homeland Security initiated deportation proceedings against defendant and he filed a C.P.L. §440.10 motion to vacate his judgments of conviction. Defendant claimed that both attorneys were ineffective for failing to advise him of his immigration consequences. Following Chaidez, the court held that Padilla did not apply. The court further opined that

insofar as the defendant contends that his attorney's failure to negotiate a plea and sentence that would have put him in a better position to fight deportation fell short of the professional norms of the day, his contention is without merit. Even if his attorney's representation fell short of the professional norms of the day, prior to Padilla a breach of those norms was constitutionally irrelevant because deportation was a collateral consequence' of the plea.

Defendant attempts to distinguish the Clarke decision by arguing that the court did not specifically consider, and the parties did not specifically brief, a claim of ineffective assistance of counsel based on a failure to negotiate an "immigration-favorable" plea and thus, the language denying a claim on that ground is purely dicta. This court need not resolve whether this language is, in fact, dicta. Clarke is still persuasive and this court chooses to follow it because it further evidences the Second Department's continuing determination that prior to Padilla deportation consequences were collateral consequences of pleas, so that the failure to negotiate an plea with less severe immigration consequences or to advise a defendant about the deportation consequences of a plea could not have been federal or state constitutional violations.

Further support for this position can be found in People v. Peque, 22 NY3d 168 (2013) where the Court of Appeals overruled the limited portion of the decision in People v. Ford, 86 NY2d 397, 657 N.E.2d 265, 633 N.Y.S.2d 270 (1995) which held that a court's failure to advise [*10]a defendant of potential deportation never affects the validity of the defendant's plea. Id. at 176. In so overruling Ford, the Court of Appeals held that "due process places an independent responsibility on the court to prevent the State from accepting a guilty plea without record assurance that the defendant understands the most fundamental and direct consequences of the plea. Id. at 191; Strickland v Washington, 466 U.S. 668, 684-687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Hill v Lockhart, 474 U.S. 52, 56-58, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985). Like the Supreme Court in Padilla, the Court of Appeals pointed to the recent changes in immigration law and enforcement and held for the first time that due process requires judges to inform defendants of the deportation consequences of their pleas thus signaling a dramatic and recent change in professional norms.

Finally, Defendant's reliance on People v. Picca, 97 AD3d 170, 947 N.Y.S.2d 120, 2010 NY App. Div. LEXIS 4304 (2nd Dept 2012) is misplaced. First, Picca did not find a violation of a right to the effective assistance of counsel, but rather reversed and remanded for a hearing on the issue of prejudice. In addition, Picca's conviction was not final prior to the ruling in Padilla and thus, counsel's representation was held to post-Padilla standards.

The motion pursuant to C.P.L. § 440.10 to vacate his conviction is denied.

This constitutes the decision and order of the court.